After entering office on 1st July, this week the new Luxembourg Presidency of the Council of the European Union circled the European Parliament, outlining its priorities to the various Committees. One proposal, of such importance not just to European businesses, governments and citizens, but our US based competitors too, has evaded past presidencies. This week we heard ambitious language from Luxembourg and we now ask if the Data Protection package could finally be adopted under their watch?
Data protection
Luxembourg’s Minister of Justice, Félix Braz, met MEPs on the Civil Liberties, Justice and Home Affairs Committee (LIBE) on 15th July where he said the Presidency wants to tackle and conclude the data protection package by the end of the year, a task beyond Lithuania, Greece and Italy. This would be no mean feat as the package comprises both a Regulation on all matters of data collection, processing and use, with strong privacy rights for everything, except of course government use of data which is subject to a separate, rather controversial Directive.
It has been 10 years since Luxembourg held the EU presidency, a post which gives even a small country a great deal of influence over its bigger neighbours. However, this influence has dwindled since former Prime Minister Jean-Claude Juncker oversaw the presidency in 2005. With the External Action Service in place the Presidency does not chair international multi-lateral platforms anymore and it no longer chairs the Council. Nevertheless, the presidency still retains significant power over the trilogue process in several policy areas, representing the Member States, setting the agenda and seeking consensus.
Should we be optimistic?
This gives us reasons to be optimistic. After a long, embittered battle Justice Ministers agreed on a (partial) General Approach in June. This was a major breakthrough by the Latvians and allowed the Parliament, the Council and the Commission finally to enter into trilogue negotiations to hammer out a final agreement.
Although trilogue deals tend to be ratified by both Council and Parliament, final agreement will be difficult. Parliament and Council diverge on several sensitive issues such as explicit consent, further processing for “incompatible” purposes and the rights of the data subject, all foreshadowing difficult and time consuming trilogue negotiations down the line. Real political momentum is however tangible now with a realistic expectation of a deal by the end of the Presidency.
Caution is still required as the General Approach deals only with the Regulation part of the package and not the more controversial Directive on government use of data. This has been under the spotlight since the NSA spying scandal and subject to heavy lobbying from the United States. Here, the role of the Presidency is more limited and Member States have yet to agree many thorny issues before starting the negotiations with the Parliament.
Luxembourg aims to agree a General Approach by October. While this objective is technically possible, it seems at best highly optimistic if the “package approach” so cherished by the Parliament is maintained because slow progress on the Directive on government data will most likely continue well into the New Year. In fact, one could argue that, since the trilogues only involve the Regulation, the “package approach” has already been broken leaving Parliament with a tricky decision to go forth with only the Regulation. On this basis only the most optimistic believe that Luxembourg will achieve their aims stated this week during the LIBE Committee.